53 Developments since the publication of the PECL

Finally, there were some specific articles or groups of articles from the PECL which, in the light of recent developments or further work and thought, seemed to merit improvement. For example, the PECL rules on stipulations in favour of third parties, although a considerable achievement at the time, seemed in need of some expansion in the light of recent developments in national systems and international instruments. The detailed work which was done on the specific contracts in Book IV, and the rights and obligations resulting from them, sometimes suggested a need for some additions to, and changes in, the general rules in Books II and III. For example, it was found that it would be advantageous to have a general rule on ‘mixed contracts’ in Book II and a general rule on notifications of non-conformities in Book III. It was also found that the rules on ‘cure’ by a seller which were developed in the Part of Book IV on sale could usefully be generalised and placed in Book III. The work done on other later Books also sometimes fed back into Books II and III. For example, the work done on unjustified enrichment showed that rather more developed rules were needed on the restitutionary effects of terminated contractual relationships, while the work on the acquisition and loss of ownership of goods (and also on proprietary security rights in movable assets) fed back into the treatment of assignment in Book III. Although the general approach was to follow the PECL as much as possible there were, inevitably, a number of cases where it was found that small drafting changes could increase clarity or consistency. For example, the PECL sometimes used the word ‘claim’ in the sense of a demand based on the assertion of a right and sometimes in the sense of a right to performance. The DCFR uses ‘claim’ only in the first sense and uses a ‘right to performance’ where this is what is meant. Again, the PECL referred sometimes to contract ‘terms’ and sometimes to contract ‘clauses’. The DCFR prefers ‘terms’, which has the advantage of applying with equal facility to written and non-written contracts.